Join Jeff Rense and me tonight, January 30, 2012, at 8:00 p.m. Pacific/11:00 p.m. Eastern, on the Jeff Rense Radio show. We will be discussing the Founders’ and Framers’ meaning of an Article II “natural born Citizen” and the states’ role in enforcing that constitutional provision.

You will be able to listen to Jeff Rense and me live on the radio show through this link: http://www.renseradio.com/listenlive.htm

Saturday, January 21, 2012

The McClellan/Obama Citizenship Debate and the Natural Born Citizen Clause

By Mario Apuzzo, Esq.
January 21, 2012

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George B. McClellan

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Dr. Conspiracy likes to give the appearance of being an unbiased scholar in pursuit of the truth regarding whether putative President Barack Obama is a “natural born Citizen.” He has also created an internet persona of being a champion of civil rights. He has even gone as far as to take the unabashed position that most people who question Obama’s “natural born Citizen” status are racists. To date, he has made no apologies for his outlandish position.

At his blog, http://www.obamaconspiracy.org/2012/01/mcclellans-citizenship/ , Dr. Conspiracy has posted a story published in The Boston Globe on November 9, 1903, entitled “McClellan’s Citizenship. Question of Eligibility for Presidency.” The story can be read at http://www.obamaconspiracy.org/wp-content/uploads/2012/01/McClellan.pdf . The story is about whether George B. McClellan, then newly-elected Mayor of New York City, but who was born in Europe to U.S. citizen parents (his father was Civil War General McClellan), was a “natural born Citizen” and therefore eligible to be President. By looking at his picture posted by Dr. Conspiracy, Colonel McClellan was surely white, but yet American citizens raised the question of whether he was a “natural born Citizen.” Note that Dr. Conspiracy does not tell us that even though McClellan was white (and so was John McCain and George Romney who were also challenged), he was challenged by presumably other whites on his eligibility to be President. So I guess that it is after all possible to challenge a political candidate on his eligibility for a particular office without being motivated by race.

One lawyer at the end of the article, Edmund A. Whitman of the law firm Elder & Whitman, even said that the issue of whether McClellan was a “natural born Citizen” was “too trivial to bother discussing.” I guess they also had Obots in 1903.

Also, Dr. Conspiracy touts the opinion of the Boston lawyers who in the article maintained that McClellan was a “natural born Citizen” and that there was no mention by them of the need for a “natural born Citizen” to be born to citizen parents.

First, McClellan was born to U.S. citizen parents. So I do not understand why Dr. Conspiracy would expect the citizenship of McClellan’s parents to be an issue.

Second, the issue was whether one has to be “native born” in order to be a “natural born Citizen.” The way the lawyers treated that issue, it meant whether being born in the United States was a necessary element of being a “natural born Citizen.” That someone satisfies a necessary element of a definition does not equate to having satisfied all necessary elements of the definition.

Third, most of the lawyers who concluded that McClellan was a “natural born Citizen” said he was so because under the Constitution there are only “natural born Citizens” and naturalized citizens, and since McClellan was not a naturalized citizen, he must necessarily be a “natural born Citizen.” Yet, Dr. Conspiracy makes no mention of the fact that none of those lawyers even cited and quote from let alone addressed United States v. Wong Kim Ark, 169 U.S. 649 (1898), which clearly stated just five years earlier that, with citizenship not descending from parents but only given by statute to the children born out of the United States to citizen parents, children born out of the United States to U.S. citizen parents are naturalized “at birth.” Additionally, U.S. v. Wong Kim Ark 169 U.S. 649 (1898) and Rogers v. Bellei, 401 U.S. 815 (1971), both considered persons born abroad to U.S. citizen parents to be naturalized “at birth.” The dissenting opinion of Justice Black in Rogers v. Bellei, 401 U.S. 815, 839-44 (1971), further elucidates the point of one being naturalized “at birth.” There he stated:

A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts." 169 U. S., at 702-703.

The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus in Minor v. Happersett, 21 Wall. 162, 167 (1875), the Court said: "Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born or they may be created by naturalization." And in Elk v. Wilkins, 112 U. S. 94 (1884), the Court took the position that the Fourteenth Amendment "contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired." 112 U. S., at 101-102.

Moreover, this concept of naturalization is the only one permitted by this Court's consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive definition of American citizenship. In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was "to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State." Slaughter-House Cases, 16 Wall. 36, 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause "put beyond doubt and cavil in the original law, who were citizens of the United States." H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens. The opinion of the Court in Afroyim described the Citizenship Clause as "calculated completely to control the status of citizenship." 387 U. S., at 262. And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a "declaration of the classes of individuals to whom citizenship initially attaches." Id., at 292.

Id. at 840-44.

So, according to Wong Kim Ark, McClellan would have been a naturalized citizen. It would then follow a fortiori from Wong Kim Ark that being a naturalized citizen, he could not be a “natural born Citizen.” But we do not see any mention of any of that by those lawyers or Dr. Conspiracy. I do not know any of the political affiliations of any of the Boston lawyers interviewed for the story nor do I have the desire to go looking it up. But I guess it must have been politics as usual also in 1903.

But the disqualifying effect of being naturalized “at birth” not only disqualified McClellan, but also disqualifies Obama. Because Obama was not born to citizen parents, assuming he was born in Hawaii, he has to rely on the Fourteenth Amendment or 8 U.S.C. Sec. 1401(a) to be a “citizen of the United States.” First, that amendment and statute do not provide anyone with the status of a “natural born Citizen,” which status is only obtained by satisfying the American “common-law” definition of the clause as confirmed by Minor v. Happersett, 88 U.S. 162, 167-68 (1875), which, after analyzing American citizenship at length, held:

"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural- born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens."

Id. at 168. As we see, only a child born “in a country of parents who were its citizens themselves” can be a “natural-born citizen.” So like Lord Coke in Calvin’s Case (1608), who naturalized Calvin “at birth” to be an English “natural born subject,” Wong Kim Ark in effect naturalized Wong “at birth” to be a Fourteenth Amendment “citizen of the United States.”

Second, because Obama needs either the Fourteenth Amendment or statute to remove the alienage with which he was born by being born to a non-U.S. citizen father, he is in effect at best a naturalized citizen “at birth,” who automatically becomes a “citizen of the United States” and needs no further naturalization after birth. But the Founders and Framers, as they revealed through the Naturalization Acts of 1790, 1795, and 1802, meant a “natural born Citizen” to be a child whose first breath of life was as a person in allegiance and citizenship only to the United States and to no other country. In other words, to be a “natural born Citizen” it was not sufficient that one was a citizen of the United States “at birth.” Rather, what was needed was that “at birth” one was only a “citizen of the United States” and of no other nation. Because of the possibility of jus sanguinis (citizenship inherited from one’s parents) and jus soli (citizenship acquired from the territory on which one is born) providing allegiance and citizenship to a child at the moment of birth, they adopted the “natural born citizen" standard for future presidents which was a child born in the country to citizen parents. This means that a “natural born Citizen” is a child who is born in the United States or its jurisdictional equivalent to a father and mother who are both either a “natural born Citizen” or a “citizen of the United States.”

Obama has conceded that his father was a citizen of Great Britain at the time Obama was born. Hence, even assuming that Obama was born in Hawaii, he was not born to a father who was either a “natural born Citizen” or a “citizen of the United States.” He was not born as a child whose first breath of life was as a person in allegiance and citizenship only to the United States and to no other country. Obama may be a Fourteenth Amendment "naturalized born Citizen," but he is not and cannot be an Article II “natural born Citizen.” As for McClellan, it does not matter for him any more, but there may be more like him who come in the future.

Before I start, I must advise you of two things: first, you will rarely find an Obama enabler who will ever admit that he or she is a lawyer (most of those who admit it have been outed by citizen researchers). The reason for that is that operating under the blanket of anonymity, they get free reign to say whatever they want without any legal or ethical accountability. And they have said some pretty bad things in the past until many of them were outed and so now they are “perfect gentlemen.” Hence, the first thing the owner of this blog tells us is that he or she is not a lawyer. Now it may be true that the owner of that blog is not a lawyer. But what about all the other enablers who feed at that blog under the cover of anonymity? So, we do need to ask ourselves whether these so-called “owners” are just straw owners who take on such tasks to provide cover for Obama’s enabler lawyers who operate in the background under the cloaking device of anonymity.

Second, before I started explaining that there is a difference between an Article II “natural born” Citizen and a Fourteenth Amendment or Statutory “born” Citizen, we hardly saw the clause “natural born” Citizen in the Obama enablers’ arguments. At that time, they were simply content with telling us that Obama was a “Citizen” of the United States or a “native-born citizen,” whether under U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the Fourteenth Amendment, or any Congressional Act. Now, no matter what case or statute they are speaking about, for these enablers its all “natural born” Citizen. The only citizens they have spared from this label are citizens who are naturalized after birth. I guess they figured that the clause would lose whatever little meaning they have given to it if they pushed it that far.

Let us now examine what Obama’s enablers are peddling on this blog. They must and do attack the Minor v. Happersett, 88 U.S. 162 (1875) decision on two fronts. First, they argue that the definition of a “natural-born citizen” given by the Court is dicta and therefore not binding precedent. But they are wrong. In Minor, the U.S. Supreme Court had to decide whether Virginia Minor, a woman, was a “citizen” in order to determine whether as a “citizen” she enjoyed a constitutional right to vote under the privileges and immunities clause of Article IV. So the Court reasoned that once she was shown to be a “citizen,” it did not matter that she was a woman, unless Missouri could still disqualify a woman from voting because being a “citizen” did not guarantee any person the right to vote. It does not matter whether the Court chose to say that Minor was a “natural born Citizen” or just a “citizen.” Either way, Virginia Minor would advance to the next step in the analysis which was whether as a “citizen” she had the right to vote which Missouri could not abrogate. The Court chose the “natural-born citizen” path. It thoroughly analyzed and considered what a “natural-born citizen” was and after saying that it is a child born in the country to citizen parents, found that Virginia Minor was a “natural-born citizen” and therefore also a “citizen.” After the Court told us what a “natural-born citizen” was, it then made the comment about there being doubts as to whether a child born in the country to alien parents was even a “citizen.” The Court said that it was not necessary for it to decide that question and it did not because Virginia Minor was a “natural-born citizen” which necessarily also made her a “citizen.” So the focus of the Court’s decision regarding citizenship was in defining who the “original citizens” and the “natural-born citizens” were. The Court did not and did not have to answer the question about who was a “citizen” under the Fourteenth Amendment which in the question that it raised involved deciding whether a child born in the jurisdiction of the United States but to alien parents was born “subject to the jurisdiction thereof.” We know that this latter question concerning who was a “citizen” under these circumstances was answered by U.S. v. Wong Kim Ark in 1898 which also confirmed Minor’s definition of a “natural-born citizen” and analyzed whether such a child was born “subject to the jurisdiction” of the United States under the Fourteenth Amendment.

So as we can see, Minor’s analysis and discussion about citizenship was central to the Court’s answering the question of whether Virginia Minor was a “citizen” which it answered by telling us that she was a “natural-born citizen” which automatically made her a “citizen” also. Hence, Minor’s discussion and decision on what a “natural-born citizen” is was central to the Court’s holding regarding citizenship (as I explained the other holding concerned whether voting was a privilege and immunity originally guaranteed by the constitution’s privileges and immunities clause) and not dicta.

Virginia Minor was not a naturalized citizen. Hence, the Court thoroughly discussed the definition of a “natural-born citizen” which it was compelled to do to decide whether Virginia Minor was a “citizen” and as such entitled to privileges and immunities under the Constitution one of which Mrs. Minor contended was the right to vote. The Court’s definition of a “natural-born citizen” was therefore essential to its holding that voting was not a privilege and immunity originally guaranteed by the Constitution and that Mrs. Minor, a woman, even though she was a “natural-born citizen,” did not have a constitutional right to vote. Minor’s definition of a “natural-born citizen” is therefore binding precedent which to this day has not been changed.

Second, Obama’s enablers attack the precedential definition of a “natural-born citizen” provided by Minor. To support their position, Obama’s enablers manipulate both the use of the word “born” and the meaning of the word “naturalized.” Regarding the word “born,” their definition of a “natural born” Citizen which is a child born in the United States and “subject to the jurisdiction thereof” does not include all the elements which should be included. When it comes to Obama, the element which they leave out is birth to citizen parents. They arrive at their truncated definition of a “natural born Citizen” by arguing that Minor v. Happersett did say that a child born in the United States of citizen parents was a “natural born citizen.” But they insist that there exists an ambiguity in the Court’s definition of a “natural-born citizen” because the Court did not say that a person not born in the United States of citizen parents was necessarily not a “natural born Citizen.” They add that the condition of being born in the United States of citizen parents was a sufficient condition, but not a necessary one. They add that the condition is not a definition even if Minor constitutes a precedent. They then conclude that persons born in the United States of citizen parents are “natural born citizens,” but that neither birth in the United States nor birth to citizen parents is required. They conclude that as long as one is a citizen at birth under the Fourteenth Amendment or any Act of Congress, even if born in the United States to one or two alien parents or born outside the United States to one or two citizen parents, one is a “natural born citizen. The fallacy of this argument lies in denying the well-established definition of a “natural born Citizen” and arguing that it is not a definition and then putting forth their own definition which is broader than the correct definition so that they can meet the broader definition (not requiring birth to citizen parents in the case of Obama).

The question is whether Minor’s definition of a “natural-born citizen” is ambiguous. The enablers’ argument that it is ambiguous and that it permits for other birth circumstances which do not exist in that definition is meritless. A definition is not ambiguous merely because it does not expressly rule out every possible other factual scenario which someone claims also fits under that definition. De Leon-Ochoa v. Att’y Gen., 622 F.3d at 353 (reviewing 8 U.S.C. § 1254a). The enablers do not tell us that not one U.S. Supreme Court case or Congressional Act in the history of our nation defines a “natural born Citizen” the way they do (i.e., as being any child born a citizen regardless of place of birth or citizenship of the parents) and that on the contrary, these sources (expect for the Naturalization Act of 1790 which is not relevant to Obama, did not support their position, and which was repealed in 1795) have always defined a “natural born Citizen” as being a child born in the United States to U.S. citizen parents. Hence, there is no ambiguity in this time-honored definition. On the contrary, the Minor U.S. Supreme Court has plainly spoken with affirmative language which comprises a definition on who is an Article II “natural born” Citizen. It has clearly set out by definition who is a “natural born” Citizen. Hence, anyone who does not meet that definition is necessarily excluded from that class of citizen.

Another approach that Obama’s enablers take to attacking Minor’s definition of a “natural born” Citizen is to say that we commit the logical fallacy of denying the antecedent. This fallacy is described as:

If A, then X.
Not A.
Therefore, not X.
This reasoning is fallacious, unless A is a necessary condition which in such case, the logic would not be fallacious. In other words, if A is merely sufficient for X to exist, the fact that A does not exists does not necessarily rule out that X can come into existence by some other factors, e.g. B or C. So if A is a bi-conditional which is expressed as “if and only if,” the logical expression presented would not be fallacious. For example, if Joe has a lot of land, then Joe is rich. Joe does not have a lot of land. Therefore, Joe is not rich. This is fallacious logic, for Joe could be rich by having a lot of gold. But if we said if Joe is breathing, then he is alive. Joe is not breathing. Then he is not alive. We do not question the correct logic of this statement. And it is correct because breathing is not only sufficient but also necessary. So what we are really saying is: “If and only if” Joe is breathing, then he is alive.

Obama enablers argue that we deny the antecedent when we say that under Minor, since Obama was not born to two U.S.-citizen parents, he cannot be a “natural born” Citizen. They add that two U.S.-parent citizenship is only a sufficient condition, and not a necessary one. But the logical error that they make in putting forth this argument is in denying that Minor gave us a binding definition of the clause “natural-born citizen” which affirmatively declared what such a citizen is. Hence, being a definition, the elements expressed are necessary conditions and not sufficient ones. Would these same Obama enablers say while reasoning under the Fourteenth Amendment that “subject to the jurisdiction thereof” is only a sufficient condition and that it is wrong to conclude that if someone is born in the United States but not “subject to the jurisdiction thereof,’ that that person could still be a “citizen of the United States” under that amendment? No, they would not make such an argument because they know that the Fourteenth Amendment provides an affirmative and declaratory definition of citizenship each element of which is a necessary condition to earning the right to have that national character. There is no difference with Minor’s affirmative definition of a “natural born” Citizen, but they deny that Minor put forth a definition, but accept that the Fourteenth Amendment does. There simply is no consistency or logic in how these enablers treat Minor in one fashion but then treat the Fourteenth Amendment in another.

Obama’s enablers then move on to Wong Kim Ark and say that it declared Wong a “natural born” Citizen and that since Obama meets the requirements of that case, he too is a “natural born” Citizen. But straightforward reading of the Wong Kim Ark case shows that it did not do any such thing. Here is the question presented as stated by Wong Kim Ark:

“The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a ‘citizen of the United States’ by virtue of the first clause of the Fourteenth Amendment of the Constitution” (emphasis supplied).

And here is the specific holding of the case:

“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a ‘citizen of the United States.’ For the reasons above stated, this court is of opinion that the question must be answered in the affirmative” (emphasis supplied). Id. at 705.

We do not see anywhere in the question presented or the holding any reference to “natural born” Citizen. The Court could not have been clearer by telling us twice that it was only deciding whether Wong was a “citizen of the United States.” We clearly see that the case only concerned itself with whether Wong was a “citizen of the United States” under the Fourteenth Amendment (more on the Fourteenth Amendment below). After all, Wong only needed to be a Fourteenth Amendment “citizen of the United States” to avoid being excluded from the United States under the Chinese Exclusion Acts which prohibited persons of the Chinese race, and especially Chinese laborers, from coming into the United States. He did not need to be an Article II “natural born” Citizen which under our Constitution and Congressional Acts is relevant only to the question of whether one is eligible to be President or Vice-President.

The lack of any reference to “natural born” Citizen in Wong Kim Ark’s question presented and holding is critical given that in the opinion itself, the Court said that “[the child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” Hence, the Court held that Wong, a person born of aliens in the United States, was a “citizen,” since he was “as much a citizen as the natural-born child of a citizen." Indeed, the Court acknowledged that one type of national character is a “citizen,” who is born in the country to “an alien,” and the other type is a “natural born citizen,” who is born in the country to “a citizen.” Under the then-prevailing notion of merger of the wife’s citizenship into that of the husband, “an alien” and “a citizen” actually meant “aliens” and “citizens,” for no other interpretation would make sense. Without such a reading, the two birth circumstances would always give the same result, for if one is born to “an alien,” parent (just one parent), then one would also be born to “a citizen” parent (the other parent). Hence, what the Court said is that a child born in the United States to an alien can be a “citizen,” but by definition not a “natural born” Citizen because a “natural born” Citizen is born to citizen parents, not to alien parents. The Court knew that Wong could not be a “natural born” Citizen because he did not have citizen parents. So, the Court analyzed, relying upon English common law, whether Wong was a “citizen of the United States” under the Fourteenth Amendment. By so doing, the Court did what Minor v. Happersett, 88 U.S. 162 (1875) said was not necessary for it to do, i.e., decide whether being born in the jurisdiction of the United States but to alien parents satisfied the “subject to the jurisdiction thereof” clause of the Fourteenth Amendment.

Again, the Court said “[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It did not say that that child born to aliens is as much a “natural-born citizen” as the natural-born child of a citizen. It said he or she was as much a “citizen.” Here, we see further proof that the Court distinguished between a “natural born” Citizen and a “citizen,” and that it found Wong to be a “citizen,” and not a “natural born” Citizen. So, the Court’s erroneous use of the old English common law applied only to how the Court defined a “Citizen” of the United States, not to how it defined an Article II “natural born” Citizen, the definition for which it cited and quoted Minor. In short, Wong Kim Ark distinguished between a “natural born” Citizen and a “Citizen” by way of definition and also in its question presented and holding.

It is also important to note that Wong Kim Ark did not revisit Minor’s American “common-law” definition of a “natural-born citizen,” which it said was a child born in the country to citizen parents. Clearly, the Court knew that Wong was not born to citizen parents. Hence, if it was going to declare Wong a “natural born” Citizen, it would have had to address Minor’s precedential definition. Such analysis would have necessarily included the Court examining the text of the “natural born” Citizen clause and commenting on the Founders’ and Framers’ intent for including the clause and all the historical evidence which in any way sheds light on the meaning of the clause. We can readily see from the Court’s decision that it did not engage in any such analysis. Since it was only concerned with determining whether Wong was a “citizen of the United States” under the Fourteenth Amendment, which is a different class of citizen than an Article II “natural born” Citizen, it was not necessary for the Court to re-examine Minor’s definition of a “natural-born citizen” or to analyze what the original meaning of the clause was. Hence, we do not find in Wong Kim Ark any such discussion on the “natural born” Citizen clause.

Further evidence that Wong Kim Ark did not declare Wong an Article II “natural born” Citizen may be found in the case of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010) (which I will discuss below). The Indiana court acknowledged that Wong Kim Ark did not declare Wong an Article II “natural born” Citizen. But then it attempts to explain that such shortfall is “irrelevant.” Needless to say, its explanation makes very little sense in the context of trying to determine what an Article II “natural born” Citizen is. Here is what the court said in Footnote 14:

“We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution’s Article II language is immaterial. For all but forty-four people in our nation’s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S. Ct. at 478.”

In its attempt to explain away why Wong Kim Ark did not specifically hold that Wong was a “natural born” Citizen, Ankeny just said that there is no practical difference between a “natural born” Citizen and a naturalized citizen other than that only the former is eligible to be President. But what does that have to do with what Wong Kim Ark held? This explanation is simply not material to the question of what Wong Kim Ark actually held which Ankeny itself concedes--it “did not actually pronounce the plaintiff a ‘natural born Citizen.’” But to Ankeny, Wong Kim Ark’s choice of language is not important notwithstanding that the Founders and Framers when writing the Constitution chose their words carefully and with specific purpose of meaning and Article I and Article II, Section 1, Clause 5 treat a “natural born” Citizen and a “Citizen” of the United States as very distinct and separate classes of citizens when it comes to congressional and presidential office. So Ankeny wants it both ways. It tells us that Wong Kim Ark did not say that Wong was an Article II “natural born” Citizen but then it tells us that based on Wong Kim Ark any person who is born in the United States and “subject to the jurisdiction thereof” is a “natural born” Citizen. It thus becomes quite clear that Ankeny’s attempt to convert Wong Kim Ark’s holding into one involving a “natural born” Citizen when it really only involved a Fourteenth Amendment “citizen of the United States” must fail.

Desperate as Obama’s enablers are, they then further enlist the assistance of Ankeny in their attempt to show us that Wong Kim Ark declared Wong a “natural born Citizen.” I have already shown that Ankeny itself conceded that Wong Kim Ark “did not actually pronounce the plaintiff an Article II ‘natural born Citizen.’” Apart from what Ankeny said about Wong Kim Ark’s holding, a simple reading of Ankeny shows that, while the court may have been correct in finding that the Governor of Indiana had no legal duty to investigate whether Obama was a “natural born” Citizen, it erred when it went beyond those simple independent state grounds which were sufficient to dispose of the case and reached a constitutional issue when it declared what the definition of an Article II “natural born” Citizen is. It said that Minor left open the question of what a “natural born” Citizen was when in fact it left open the question of whether a child born in the United States to alien parents was a “Citizen” of the United States. Ankeny also said that Wong Kim Ark answered the question left open by Minor and declared Wong to be a “natural born” Citizen. While Wong Kim Ark did answer the question left open by Minor, i.e., whether Wong, who was born in the United States to domiciled alien parents, was a “Citizen” of the United States under the Fourteenth Amendment, it did not declare Wong to be an Article II “natural born” Citizen. I have shown above how the question presented in Wong Kim Ark was whether Wong was a “citizen of the United States,” not whether he was a “natural born” Citizen, and that its holding was limited to Wong being a “citizen of the United States,” not a “natural born” Citizen. Additionally, Ankeny is only a state law case and surely does not overrule Minor which confirmed the American “common-law” definition of a “natural-born” Citizen” to be a child born in the country to citizen parents.

Again with further assistance from the state-law case of Ankeny, Obama’s enablers then look to the Fourteenth Amendment for help. They add that Ankeny also relied upon the Fourteenth Amendment to show that any person born in the United States and “subject to the jurisdiction thereof,” regardless of the citizenship of his or her parents, is a “natural born” Citizen. But they do not explain how they go from the amendment’s text referring to a “citizen of the United States” to it saying according to them a “natural born” Citizen. They do not tell us that nowhere in the amendment will we find the words “natural born” Citizen and that nothing in its history or in its debates suggests that its framers included in the amendment “natural born” Citizen status or that they intended by the amendment to create or amend the meaning of an Article II “natural born” Citizen. On the contrary, the amendment was passed during Reconstruction to bestow initial membership in the United States upon freed slaves. This initial membership since the Founding, even confirmed in the grandfather clause of Article II, Section 1, Clause 5, has always been simply called “Citizen” of the United States. Hence, if the amendment were to be used by any other person to gain citizenship in the United States, he or she could only gain that same initial membership which we call “Citizen” of the United States. As proof of this purpose, the amendment only includes the words, “citizens” of the United States. Remember that Article II, Section 1, Clause 5 also speaks of “natural born” Citizens and “Citizens” of the United States. Because the republic was new, the Framers grandfathered the initial members to be eligible to be President. This class included the Founders and Framers themselves who were born British “natural born subjects” and who were naturalized to be “Citizens” of the United States by the power of the Declaration of Independence and by adhering to the American Revolution. But for births after the adoption of the Constitution, it allowed only a “natural born” Citizen to be eligible to be President. This latter class was comprised not of initial members of the United States (only “Citizens” and nothing more), but rather the children of such initial members (children of “Citizens”) or the children of later-generation members (children of “natural born” Citizens). Hence, simply being a born “Citizen” of the United States is not sufficient to be eligible to be President, for in such case, the person’s birth circumstance is missing citizen parents. Any common sense reading of the Fourteenth Amendment would show that its citizenship status is not sufficient for one to be eligible to be President. First, one must be a “natural born” Citizen and not only a “Citizen” of the United States which is the status provided by the amendment. Second, it is not sufficient to simply say that one is born a “Citizen” of the United States under the amendment and therefore a “natural born” Citizen. The Founders and Framers said “natural born,” not just “born.” In order to gain this special status of “natural born” Citizen, one must satisfy the American common law definition of a “natural born” Citizen handed down to us since the Founding and confirmed in both Minor and Wong Kim Ark. One cannot simply obtain the status of a “Citizen” of the United States under the Fourteenth Amendment, Congressional Act, or treaty, even if that status is gained from the moment of birth, for these positive laws neither by affirmative language nor by definition bestow upon anyone the status of a “natural born” Citizen. Moreover, both Minor and Wong Kim Ark said that the Fourteenth Amendment defines neither a “Citizen” of the United States (it does not define what “subject to the jurisdiction thereof” means) nor a “natural born” Citizen. That would mean by referring to neither a “natural born” Citizen nor to defining one. That is why Minor relied on American “common-law” to define a “natural born” Citizen and Wong Kim Ark relied upon English “common law” to define a “Citizen” of the United States.

So has Obama’s enablers’ position improved any by relying on the Fourteenth Amendment and Ankeny which got it like them plainly wrong? Again, the answer is a resounding “no.”

But Obama’s enablers do not stop there. They also provide lower federal court and state law cases that declared persons born in the United States to alien parents “Citizens” of the United States. First, they avoid mentioning that Minor v. Happersett in 1875 said that there were “some authorities” who said that a child born in the United States to alien parents were “citizens.” Minor rightfully said “there have been doubts” regarding whether these “authorities” were correct, given that Congress since 1790 required any child born to alien parents, regardless of the place of birth, to naturalized in the United States in order to become a “Citizen” of the United States. Second, these cases only defined a “Citizen” and not a “natural born” Citizen.

But Obama’s enablers do not end there either. They then attack Emer de Vattel, saying that nobody knew that “dead Swiss guy” who wrote “some book” on some citizenship “stuff.” Needless to say, the historical record and case law is replete with information which shows how influential Vattel was during the Founding in helping our leaders justify the American Revolution, write the Constitution, and constitute the new republic. See, for example, J.S. Reeves, The Influence of the Law of Nature Upon International Law in the United States, 3 Am.J. Int’l L. 547 et. seq. passim (1909) (Vattel exerted such a profound political influence that it is often pointed out that his theories served as the backbone for American independence); Lee A. Casey, David B. Rivkin, Jr. and Darin R. Bartram, Unlawful Belligerency and Its Implications Under International Law, http://www.fed-soc.org/publications/PubID.104/pub_detail.asp (concerning U.S. constitutional analysis, “Vattel is highly important. He was probably the international law expert most widely read among the Framers”). In fact, Vattel continued to be practically applied in our nation for well over 100 years after the birth of the republic. F.S. Ruddy, The Acceptance of Vattel, Grotian Society Papers (1972) (Vattel was mainstream political philosophy during the writing of the Constitution. The Law of Nations was significantly the most cited legal source in America jurisprudence between 1789 and 1820). But as we can see, the importance and practicality of Vattel lives on today.

Finally, and this is Obama’s enablers’ favorite ploy, they say for the Birthers to be right, all smart and consequential people in America would have to be part of some grand conspiracy. They paint the “Birthers” with the same brush and paint that they paint those who question the moon landing, the Kennedy assassination, the 9-11 attacks, and whether there is some plot to create a “One World Order.” But there is nothing conspiratorial about correctly defining an Article II “natural born” Citizen and applying that definition to Obama’s admitted birth circumstances. He has admitted and it is corroborated by documentation that he was born to a non-U.S. citizen father. Hence, he cannot be a “natural born” Citizen. There is no conspiracy in that, my friend.

And so it goes on, for this is how Obama’s enablers must make a living.

The Rules

THE RULES:

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